"There
are obligations imposed by LEY 57/1968 on financial institutions -
some banks have not acted with diligence"Source: Banco de España Memoria
del Servicio de Reclamaciones 2008 & El Pais Newspaper - August 2008"New
solutions tailored to the present-day problems must be sought"
"Good supervisors should not limit themselves to analysing the
present, but should also anticipate possible scenarios
of non-viability that might arise in the future and attempt to
reduce problems to a minimum before they emerge"Source: Miguel Ángel
Fernández Ordóñez - Ex-Governor of Banco de España - Speech at
Fundación de Estudios Financieros, Madrid, 1 December 2011

“Come here calmly, and trust in the system that we have and the
transparency we provide” Excelentísimo Señora
Beatriz Corredor Sierra - Ex-Spanish Housing Minister - February 2011

“Spain's voice must be respected again in Brussels and
Frankfurt. We will stop being part of the problem
and will be part of the solution" November 2011"You have
before you a President of the Government who will face up to issues
and not hide himself away"Interview EFE Agency January
2012Excelentísimo Señor Mariano Rajoy Brey -
Presidente del Gobierno de España - November 2011

Ex-Spanish Prime
Minister Mr José Luis Rodríguez Zapatero said in
THE EU PARLIAMENT ON 6 JULY 2010:"My country is based on the rule of law and it respects and ensures
that
laws are respected. The courts are responsible for the
application of law.
We stand shoulder to shoulder with those
people who, maybe, have had the
wool pulled over their eyes in the
property sector"

Taking legal action according to LEY 57/68 against
the Bank or Savings Bank who accepted your off-plan deposit
is a
relatively new course of action.

Previously, in cases where the developer had defaulted on the contract
Lawyers had been advising their clients without
Bank Guarantees to take
legal action only against the developer. That course of action is
fine in the case of solvent developers
who have the funds to refund the
purchaser.
However, in many cases we find that the legal action ends with the
Lawyer winning
the case against the developer only to find that due to
the delays
in the court process the developer has had time to either
move all the
assets out of their name or have gone into Administration or Liquidation
during
the trial. Therefore, the purchaser
has little chance of ever
receiving a refund from the developer but is still responsible for the
payment of a large
legal
fee to their Lawyer.
The Lawyer justifies the fee by stating that they won the case.
Unfortunately the only real winner in this
scenario is the Lawyer.

However following a deeper study of LEY 57/68 which has taken place over
the past 2 years, it is possible, under certain
circumstances, to take action
against the Bank or Savings Bank who
accepted the
off-plan deposit. But for a number of
reasons there are still very
few Lawyers willing to take this
course of action. One explanation could be that some Lawyers
have a poor understanding of LEY 57/68 and are unwilling to carry out
the required
research and study of the case
law regarding LEY 57/68.

The FINCA PARCS ACTION GROUP are currently taking this course of legal
action against the Savings Bank who accepted
the off-plan deposits at
the
Las Higuericas Finca Parcs development and failed to either issue the
legally required Bank
Guarantees or to verify the existence of Bank
Guarantees to
protect and secure the off-plan deposit funds in their
custody.
You can read more about the FINCA PARCS ACTION GROUP by
clicking
HERE.

If you were never provided with the legally required Bank Guarantee and
wish to establish whether you have a possible
case against the Bank or
Savings Bank who accepted your off-plan deposit you will first need to
confirm the following information:

1. To whom did you pay your off-plan deposit - was it to the
agent, to your Lawyer or direct to the developers Bank Account?

2. If you paid to the agent or Lawyer you will need to get a
signed and stamped receipt from them detailing the name of
the
developers Bank and the
account number to which they sent the deposit funds on your behalf.

3. If you paid the deposit to your Lawyer you should also ask them
if they verified that the developers Bank account to which
they sent
your deposit
funds was a Cuenta Especial and complied with the requirements of LEY
57/68. You should also
request copies of all letters and
correspondence sent by
the Lawyer to the Developer and Bank demanding that the
Bank Guarantee
be issued.

4. If you paid direct to the developers Bank Account you will need
to have receipts for the payments together with a copy
of the document
provided
by the Agent, Developer, Lawyer or Bank giving instruction as to where
the funds were to be sent.
You should also write to the Bank and
ask them to
confirm the status of the account into which they accepted your off-plan
deposit.
Ask them if it is a Cuenta Especial or a Cuenta
Corriente.

5. It would also be useful to have information to show whether the
Bank or Savings Bank who accepted your off-plan deposit
were the sole
financial entity
funding the project or were there other Banks or Savings Banks involved
in financing the
developer and the project.

6. You should also have a copy of your Sales Agreement and any
Sales Literature from the developer, agent or Lawyer
which makes
reference
to the fact that Bank Guarantees would be issued by a particular Bank or
Savings Bank.

7. It would also be useful to know if the Bank or Savings Bank who
accepted your off-plan deposit did in fact issue Bank
Guarantees to any
other
purchasers on your development. If they did then further research
on this issue can be undertaken.

FORMING AN ACTION GROUP

If you are considering action against the Bank or Savings Bank according
to LEY 57/68 then discuss this matter with your
Lawyer and see if they
are
willing to take this course of action. It may also be useful to
ask the Lawyer if they have other clients
in the same situation on the
same development.
If they do then it would make sense to form an action group and negotiate
lower fees from the Lawyer based on the number of purchasers in the
group.

If the Lawyer does not have other clients from your development then it
may be possible for you to contact other buyers
who were not provided
with the
legally required Bank Guarantees
on your development via internet forums etc and form an
action group
that way.

If it is not possible to form a group action then of course you can
consider taking
individual legal action against the Bank or
Savings Bank who
accepted
your
off-plan deposit.

The most important aspect is to ensure that the Lawyer you appoint has a
full understanding of LEY 57/68 and that they
have experience in
preparing these kind of cases against the Banks and Savings Banks.
In the last 2 years there has
been a huge increase in the number of
court cases
regarding Bank Guarantees and LEY 57/68. Many of these cases can
be used as a reference to provide additional case law to support your
legal action.
However it is up to your Lawyer to
carry out the relevant research in this
regard.

LEGAL ACTION AGAINST THE DEVELOPER

If you currently have a Lawyer and are in the process of taking legal
action solely against the developer then you should
discuss with your
Lawyer
the possibility of starting action according to LEY 57/68 against the
Bank or Savings Bank who
accepted your off-plan deposit.

BANK GUARANTEE - EXPIRY DATES

If you currently have a Lawyer and they are advising you that you are
unable to claim on your Bank Guarantee because it
has an 'expiry date'
and has now expired, please refer them to LEY 57/68 Article 4 which
states:

"Once the Certificate of Occupancy is issued by the Provincial
Delegation of the Ministry of Housing and given by the
promoter of the
housing
to the buyer the rights guaranteed by the insurer or guarantor will be
cancelled"

Therefore, according to the above article a Bank Guarantee must not have
an expiry date. It only expires when the
Certificate of Occupancy
/
Licence of First Occupation is issued to the developer by the Town Hall
and given by the
developer to the buyer.

BANK GUARANTEE - COPIES

If you were provided with a Bank Guarantee which you are now in the
process of executing with the issuing Bank or
Savings Bank and your
Lawyer
is advising you that the Bank will not issue a refund due to the fact
that you only have a
photocopy of the Bank Guarantee and not the
original, please
refer your Lawyer to the following:

As stated in the 2008 Banco de Espana Claims Service report: If
the purchaser is in possession of a Photocopy of the
Bank Guarantee and
renounces all legal rights attached to the original version of the Bank
Guarantee, the financial entity
must honour the Bank Guarantee on
production of the Photocopy.

Your Lawyer will need to make a claim to the Banks Defensor del Cliente
department and if they are unwilling to issue a
refund based on the
photocopy of the Bank Guarantee then your Lawyer should report the
matter to the
Banco de Espana Claims Service.

The Bank Guarantees Website is a free voluntary service providing
information regarding LEY 57/68
and Bank Guarantee Abuse. Under no circumstances can the Bank
Guarantees In Spain Website provide advice
on an individual basis or give an opinion on specific individual cases.

Before making a decision or taking any action with
regards to your personal situation we
must strongly advise that
you take independent legal advice.

The Bank Guarantees In Spain Website and Petition does not endorse the
services of any Lawyer or Law Firm.